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«Title of Dissertation: CONFEDERATE FEDERALISM: A VIEW FROM THE GOVERNORS Michael Albert Powell, Doctor of Philosophy, 2004 Dissertation directed by: ...»

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Michael Albert Powell, Doctor of Philosophy, 2004

Dissertation directed by: Professor Herman J. Belz

Department of History

Examination of Confederate federalism to date generally has emphasized

one of two interpretations: that the Confederacy either “died of state rights” or that the Confederacy, because of the war-time demands, created a government at least as centralized as the Union, if not more so. This dissertation argues that the reality was much more complex. Confederate federalism consisted of three phases. The first, or the cooperative, phase was represented by a high degree of cooperation between the states and central government and lasted from the formation of the Confederacy until the spring of 1862. The governors freely provided troops, arms, and equipment to both the Confederacy and each other with minimal conflict over constitutional lines of authority.

The second phase, from the spring of 1862 to the fall of 1864, was marked by conflict between the states and the Davis administration, with the differences resolved through negotiated compromises. While conscription was a war-time necessity, compromises were negotiated between the governors and the Davis administration over exemptions, use of state courts in deciding the constitutionality of conscription, and changes in the law itself. Impressment and the suspension of the writ of habeas corpus were recognized by the governors as legitimate constitutional powers of the central government, but limitations were negotiated with respect to their enforcement. Lastly, fiscal policies were deemed by the governors to fall within the sphere of the Confederacy’s constitutional authority and therefore beyond the scope of gubernatorial authority.

The final phase of Confederate federalism, from the fall of 1864 until the end of the war in the spring of 1865, witnessed the states struggling for survival and the collapse of the Confederacy. The governors sought to keep troops and supplies for their states and to suppress or control local peace initiatives in an unsuccessful effort to win the war.



by Michael Albert Powell Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment Of the requirements for the degree of Doctor of Philosophy 2004

Advisory Committee:

Professor Herman J. Belz, Chair Professor Mark A. Graber Professor James A. Henretta Associate Professor Alfred A. Moss, Jr.

Associate Professor Whitman H. Ridgway Copyright by Michael Albert Powell

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Investigating a topic as broad the Confederate governors’ perspective on federalism could not have been accomplished without help from others. Having visited libraries and state archives throughout the former Confederate states and beyond, I was fortunate to have encountered many dedicated archivists and librarians. I appreciate their efforts in facilitating my research and am grateful for all of their assistance.

This dissertation benefited in many ways from the penetrating wisdom and generous assistance of Professor Herman Belz. Professor Belz’s perceptive comments and constructive criticisms have helped me sharpen the internal logic of the dissertation and rescued me from a variety of errors. Working with Professor Belz has always presented a formidable intellectual challenge, of which I am profoundly grateful to have had the opportunity.

One fellow graduate student played a most significant role during the course of this dissertation. Donald Stelluto has been an intellectual inspiration, a dependable source of strength, and a great friend throughout my time at the University of Maryland. I owe much to him as a colleague and a friend, and I look forward to battlefield trips together when we do not have to take notes.

Finally, the love and support of family has always sustained me through this project. My parents, Al and Louellen Powell, have always offered the kind word as well as enthusiastic encouragement, and helped transport my children to their various events while I was occupied with researching and writing. My children,

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finish it; indeed, they delayed the completion of the manuscript. They took their father away from his work, but, in return, gave him much pleasure and joy. To them, I dedicate this work, and promise that there will be far fewer weekends when I tell them I have to go to the office all day. Finally, my wife Barbara, an accomplished historian in her own right, has been a source of ideas and constructive critiques as well as an outstanding editor. But even more importantly, she has shouldered more than her share of managing the family, enabling me to complete this project. And for that, I am eternally grateful.

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Introduction ……………………………………….…………………………... 1 Chapter I: Secession ……………………………………….………………….. 31 Chapter II: Cooperation …………………………………………….…………. 66

Chapter III: Political Negotiation:

Conscription and the Suspension of the Writ of Habeas Corpus …………………………………….… 116

Chapter IV: Economic Negotiation:

Fiscal Policy, Railroad Regulation, Industrial Regulation, and Impressment ……………………... 173 Chapter V: Survival ………………………………………………………….. 216 Conclusion ………………………………………………………………….... 256 Appendix One: The Governors of the Confederacy……………………….…. 274 Appendix Two: The Constitution of the Confederate States of America …………………………………………….. 276 Bibliography …………………………………………………………..……... 291

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This study examines federalism from the perspective of the governors of the eleven states of the Confederate States of America. The governors’ position in the Confederacy provides a unique view of Confederate federalism. The main issue was the extent to which the office of governor would remain as it was in the United States constitutional order; certainly the possibility existed to reconstruct the governors’ office, giving it greater, or even less, power. This proved to be a difficult issue to resolve. The Confederate governors ultimately led their states into a relationship with the Confederate central government that was very different than that in the United States. For the first year of the war, cooperative federalism dominated the relationship between the states and central government. With the competition for resources, a desire to win the war, and military losses creating friction between the states and central government, from the spring of 1862 to the fall of 1864, a period of negotiated federalism ensued. In the last months of the war, the relationship degenerated as the governors and the central government each sought whatever resources were available to survive the collapse of the Confederacy.

The state governmental structure, as compared to the Confederate central government, was already intact and functional in the spring of 1861. Chief executives of the various states logically assumed leadership of their states.

Because the governors were the focal point of state interaction with the Confederate

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While the title and authority of the southern governors remained relatively constant from the colonial era to the outbreak of the Civil War, their responsibilities generally were expanded. As chief executives, the southern governors under the first state constitutions after the Revolution were accorded limited power out of fear that they could exercise his power arbitrarily. Thus, the legislature was the dominant branch of government in the early years of the republic and through the ante-bellum period. And although it might be tempting to think of the governors as “little Presidents,” James Fesler notes that governors fail to fulfill such a role largely because of their inability to “attract public attention and, if necessary, mobilize public support.”1 This is certainly true of the ante-bellum southern governors, although during the state secession crises and subsequent periods of state independence many governors were able galvanize public attention and support and, thus, function effectively as a chief executive.

Governors in virtually all of the southern states prior to 1861 were authorized to execute the laws, grant pardons and reprieves, issue proclamations, and command the militia. North Carolina was one of the exceptions by granting the governor only the constitutional power to grant pardons and commission justices of 1 James W. Fesler, ed., The 50 States and Their Local Governments (New York, NY: Alfred A. Knopf, Inc., 1967), 290-291.

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ordinary circumstances would not permit the governor to properly “check” the actions of the legislature. With the governor’s command of the militia he could challenge the legislature, but then only under extraordinary circumstances. The constitutional limitations confronting the ante-bellum southern governors left them with weakened authority.

Almost all ante-bellum southern governors faced term limits. In Alabama, the executive was elected to a two-year term, to serve no more than four years out of six;3 in Arkansas, the governor was elected to a four-year term, serving no more than eight of twelve years.4 Under Virginia’s 1776 Constitution, the governor was elected for a one-year term, eligible for re-election up to three successive terms. He could become governor for a fourth term only after a four-year hiatus. Virginia later amended the term requirement to one of three years, with a three-year period of ineligibility before being able to serve again, and in 1851 amended the term once more to one of four years, with a four-year period of ineligibility.5 As an additional limitation, all of the original southern states provided for election of the governor by the legislature, although only South Carolina retained this provision until the Civil War. Georgia provided for the popular election of the 2 Ralph A. Wooster, Politicians, Planters, and Plain Folk: Courthouse and Statehouse in the upper South, 1850-1860 (Knoxville, TN: The University of Tennessee Press), 56.

3 Alabama Constitution (1819), art. 4, sec. 4.

4 Arkansas Constitution (1836), art. 5, sec. 4.

5 Virginia Constitutions (1830), art. 4, sec. 1; (1851), art. 5, sec 1.

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and Virginia in 1851 amended its Constitution to allow for the popular election of the chief executive.8 Mississippi,9 Alabama,10 Arkansas,11 Florida,12 all provided for direct election of the governor upon their entry into the Union.

For most southern states prior to the Civil War, further limitations of gubernatorial powers included either lack of a veto power or, in instances where the veto authority was granted, it could be overridden by a simple majority of the legislature. In South Carolina, Virginia, Tennessee, and North Carolina, the governors all lacked the veto power. This severely limited the power of the governor to check the legislature and thus contributed to the governors’ subordination to the legislature. Florida13 and Arkansas14 permitted a governor’s veto, but a simple majority of the state legislature could overturn his veto. The 6 Georgia Constitution (1798), art. 2, sec. 2 (amended 1824).

7 North Carolina Constitution (1776), sec XV (amended 1835, art. 2, sec. 1).

8 Virginia Constitution (1851), art. 5, sec. 2.

9 Mississippi Constitution (1817), art. 4, sec. 1.

10 Alabama Constitution (1819), art. 4, sec. 2.

11 Arkansas Constitution (1836), art. 5 sec 2.

12 Florida Constitution (1845), art. 3, sec 2.

13 Florida Constitution (1838), art. 3, sec. 17.

14 Arkansas Constitution (1836), art. 5, sec. 16.

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and Texas18 where the governor’s veto could only be overridden by two-thirds of each house in the state legislature.

The governor of North Carolina was subject to stricter limitations than the other southern governors in that he had to share authority with the Council of State.

The state legislature appointed seven persons to a one-year term on the Council, which was to

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The Council of State, along with the lack of a veto, left the state’s governor without any substantive ability to counter the legislature.

Louisiana, early in the eighteenth century, accorded its governors more power than any other Southern state. Under the Constitution of 1812, the chief executive commanded the state’s armed forces, could veto legislation (which could be overridden only by a two-thirds vote), and was authorized to appoint numerous 15 Georgia Constitution (1789), art. 2, sec. 10.

16 Louisiana Constitution (1852), title III, art. 53.

17 Mississippi Constitution (1832), art. 5, sec. 15.

18 Texas Constitution (1845), art. V, sec. 17.

19 North Carolina Constitution (1776), art. 16.

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